Minnesota is one of the strictest states in the country regarding the refusal of a chemical test during a DWI arrest. In most states, test refusal is an administrative matter — you lose your license, but you don’t face criminal charges. In Minnesota, refusing is a standalone crime. It’s charged as a gross misdemeanor carrying up to one year in jail and a $3,000 fine, and it automatically elevates the degree of your DWI charge.
Understanding the implied consent law is critical because the decision to take or refuse the test is one of the most consequential choices you’ll make during a DWI arrest — and you have to make it under pressure, often in the middle of the night, with an officer standing over you.
What the Implied Consent Law Actually Says
Under Minn. Stat. § 169A.51, every person who drives, operates, or is in physical control of a motor vehicle in Minnesota has given implied consent to a chemical test of their breath, blood, or urine for the purpose of determining the presence of alcohol, controlled substances, or cannabis.
This means that by holding a Minnesota driver’s license and driving on Minnesota roads, you’ve already agreed by implication to be tested if lawfully arrested for DWI.
The keyword is “lawfully.” The implied consent obligation only kicks in when the officer has probable cause to believe you were driving while impaired, and one of the following conditions exists:
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- The officer lawfully arrested you for DWI
- The officer has probable cause to believe you were driving while impaired, and you were involved in a crash
- You refused or failed the preliminary breath test (roadside PBT)
- The PBT indicated a BAC of 0.08% or higher
Three Types of Tests — Three Different Rules
This is where most confusion occurs. There are three types of tests you may encounter during a DWI stop, and each has different legal rules:
1. Field Sobriety Tests (FSTs) — Completely Voluntary
The walk-and-turn, one-leg stand, and eye tests performed at the roadside are entirely voluntary. There is no legal penalty for refusing them. You cannot be charged with a crime, and your license cannot be revoked for declining. Officers often make the tests feel mandatory, but they’re not.
2. Preliminary Breath Test (PBT) — Roadside Handheld Device
The small handheld breathalyzer used at the roadside is a preliminary screening tool. Under § 169A.41, an officer “requires” a PBT if they have reason to believe you’ve been drinking. Refusing a PBT is a petty misdemeanor — essentially a traffic ticket with a fine but no jail time and no criminal record.
PBT results are generally not admissible at trial. They can only be used to establish probable cause for arrest. The PBT and the station breath test are entirely different devices with different legal significance.
3. Evidentiary Chemical Test — The One That Matters
The breath test at the station (on the DataMaster DMT instrument), or a blood or urine test, is the evidentiary test governed by the implied consent law. This is the test where refusal is a crime.
Before requesting an evidentiary chemical test, the officer must read you the implied consent advisory, which informs you:
- That Minnesota law requires you to take the test
- That refusal to submit to a breath test is a crime
- That you have the right to consult with an attorney before deciding, but this right cannot unreasonably delay administration of the test
What Happens If You Refuse
Criminal Consequences
Refusing the evidentiary test is a crime under § 169A.20, subd. 2. The penalties are:
| Refusal Scenario | Criminal Classification | Max Jail | Max Fine |
| First refusal, no aggravating factors | Gross Misdemeanor | 1 year | $3,000 |
| Refusal + one aggravating factor | Gross Misdemeanor (second-degree DWI) | 1 year | $3,000 |
| Refusal + two aggravating factors | Gross Misdemeanor (second-degree DWI) | 1 year | $3,000 |
| Refusal + qualifying priors (felony territory) | Felony (first-degree DWI) | 7 years | $14,000 |
Critically, refusal elevates the degree of your DWI charge. A first-time DWI without aggravating factors is normally a fourth-degree misdemeanor — maximum 90 days jail, $1,000 fine. But if you refuse the test, it becomes a third-degree gross misdemeanor — up to 1 year jail and $3,000 fine. Refusing makes your situation worse, not better.
Administrative Consequences
Refusal triggers a 1-year license revocation for a first offense. Under Minnesota’s updated 2025–2026 DWI law changes, the “lookback” window for license consequences is a full 20 years; your license revocation tracks increase dramatically:
- 1 Prior Incident: 2-year mandatory revocation/Interlock period.
- 2 Lifetime Priors: 6-year revocation (License Canceled).
- 3+ Lifetime Priors: 10-year revocation (License Canceled).
Depending on the facts of the case, a refusal or related aggravating factors may also create vehicle-related consequences, including special registration plate requirements. We cover those issues in more detail in our guide to Minnesota whiskey plates.
Furthermore, entering the Ignition Interlock program is no longer just a way to drive; all repeat offenders must now complete a licensed substance use disorder treatment or rehabilitation program to ever get a standard, unrestricted license back. On a positive note, the law now allows drivers to enter the Interlock program before paying the steep $680 reinstatement fee upfront.
Refusal Doesn’t Stop the Evidence
Many people refuse because they believe it prevents the state from getting evidence of their BAC. This is increasingly untrue. Officers can — and routinely do — obtain a search warrant for a blood draw after a refusal. Since Birchfield v. North Dakota (2016), breath tests don’t require a warrant because they’re minimally invasive, but blood draws do require one. Officers obtain these warrants quickly, often within 30-60 minutes, via electronic warrant applications.
The result: you’re charged with both the refusal crime AND the DWI based on the blood test results. You get the worst of both worlds. That does not mean the case is hopeless. Refusal cases often turn on technical and constitutional issues — including the legality of the stop, probable cause for arrest, whether the advisory was properly read, and whether your right to counsel was honored. For a broader look at these issues, see our guide on how to beat a DWI in Minnesota.
Your Right to Consult an Attorney
Minnesota law gives you the right to consult with an attorney before deciding whether to take the test. This right is enshrined in the implied consent advisory and protected by the Minnesota Constitution (Article I, Section 6).
In Friedman v. Commissioner of Public Safety (1991), the Minnesota Supreme Court found that denying a driver meaningful access to an attorney before the testing decision violated constitutional rights, and the test results were suppressed.
Courts have found 20-30 minutes to be a reasonable time to consult with an attorney. The officer cannot rush you through this process, but you also cannot use this right to indefinitely delay testing. If you request to call an attorney, the officer must provide you with a phone and a reasonable opportunity to reach one. If you cannot reach anyone within a reasonable time period, you must make your decision.
Practical advice: If you’re arrested for DWI, exercise your right to consult an attorney. Most DWI defense attorneys have 24/7 numbers for exactly this reason. At Leverson Budke, you can reach us at (651) 829-3572 at any hour.
What Counts as a “Refusal”
Refusal isn’t always a clear “no.” Under § 169A.51, subd. 5(c), failure to provide two separate, adequate breath samples in the proper sequence constitutes a refusal. This means:
- Saying “no” or “I refuse” — obvious refusal
- Blowing too weakly (insufficient sample) — may be treated as refusal
- Providing two samples that differ by more than 0.02 BAC — deficient test may require a third attempt; two deficient sets equal refusal
- Silence or non-response after the advisory is read can be interpreted as a refusal
- Saying “I want to think about it” and failing to decide within a reasonable time can constitute refusal
- Any conduct that prevents or hinders the collection of the sample — statutory refusal
The officer’s body camera footage becomes critical evidence in refusal cases. What you said, how you said it, and whether the officer gave you adequate time and opportunity can all affect whether the “refusal” is legally valid.
Defenses to Refusal Charges
Refusal charges are not ironclad. There are several viable defenses:
- Improper advisory. The officer must read the correct version of the implied consent advisory. There are different versions for breath tests versus blood/urine tests. Reading the wrong version, omitting required elements, or failing to adequately explain your rights can invalidate the refusal.
- Denial of the right to counsel. If the officer didn’t give you a meaningful opportunity to consult an attorney — or rushed you through the process — the refusal may be challengeable under Friedman.
- Unlawful arrest. The implied consent obligation only applies after a lawful arrest supported by probable cause. If the arrest was unlawful, the advisory was improperly administered, and the refusal charge cannot stand.
- Not actually a refusal. If you attempted to provide samples but couldn’t due to a medical condition (asthma, COPD, anxiety-induced hyperventilation), the “refusal” may not be genuine. Body camera footage showing sincere attempts to blow can support this defense.
- Confusion or language barriers. If you didn’t understand the advisory due to language, intoxication level, medical condition, or inadequate explanation, the refusal may not have been knowing and voluntary.
Should You Refuse? The Honest Answer
This is the question every DWI defendant wants answered, and the honest answer is: in most cases, refusing makes things worse, not better.
Refusal elevates your charge degree, triggers a separate crime, extends your license revocation, and increasingly doesn’t even prevent the state from getting your BAC (because they’ll get a warrant for blood). The scenarios where refusal might be strategically advantageous are narrow and highly fact-specific — and you won’t know whether they apply to your situation at the moment.
The better approach: exercise your right to call an attorney before deciding. A defense lawyer who understands the implied consent law can give you case-specific guidance in that critical window.
Your 14-Day License Deadline
Whether you took the test or refused it, you have immediate timelines to protect your driving privileges. When an officer serves a notice of revocation, the officer invalidates your physical driver’s license and issues a temporary paper license effective for 14 days. This 14-day window serves as your immediate grace period to drive legally and arrange your affairs before the hard revocation kicks in. Because the deadlines move quickly, it helps to follow a step-by-step plan immediately after release. Our guide on what to do after a DWI arrest in Minnesota walks through the first calls, paperwork, and license steps to prioritize.
However, note that the deadline to petition for judicial review of the revocation is 60 days after receiving the notice and order of revocation or disqualification. While you have a full 60 days to formally launch your legal challenge in civil court, you must act within the first 14 days if you want to apply for the Ignition Interlock program to avoid a gap in your ability to drive legally. Missing your 60-day legal deadline means the revocation becomes permanent and cannot be appealed.
At Leverson Budke, we handle implied consent hearings and refusal defense across the Twin Cities. We understand the technical and constitutional issues that can make or break these cases.
Frequently Asked Questions
1. Is refusing a breath test a crime in Minnesota?
Yes. Refusing the evidentiary chemical test (breath at the station, or blood/urine) is a gross misdemeanor carrying up to 1 year in jail and a $3,000 fine. It’s a separate charge on top of the underlying DWI.
2. Can I refuse field sobriety tests in Minnesota?
Yes. Field sobriety tests (walk-and-turn, one-leg stand, eye tracking) are completely voluntary. There is no legal penalty for refusing them.
3. What is the difference between the roadside breath test and the station breath test?
The roadside preliminary breath test (PBT) is a handheld screening tool. Results are generally not admissible at trial. The station breath test (DataMaster DMT) is the evidentiary test governed by implied consent law. Refusing the station test is a crime; refusing the PBT is only a petty misdemeanor.
4. Can the police get my blood if I refuse the breath test?
Yes. Officers can obtain a search warrant for a blood draw, often within 30-60 minutes via electronic application. Refusing the breath test does not prevent the state from obtaining BAC evidence.
5. Do I have the right to call a lawyer before taking the test?
Yes. Minnesota law gives you the right to consult with an attorney before deciding, but this right cannot unreasonably delay testing. Courts have found 20-30 minutes to be a reasonable consultation period.
6. Does refusing the breath test help my DWI case?
In most cases, no. Refusal elevates the degree of your DWI charge, triggers a separate crime, and extends license revocation. Officers can still obtain BAC evidence through a blood draw warrant. The scenarios where refusal is strategically beneficial are narrow.
